Court of Appeal rules on diplomatic immunity claim in dispute arising from divorce

22/03/16

The Court of Appeal today held that Dr Walid al-Juffali, a businessman of Saudi nationality, was entitled in principle to enjoy immunity but that his claim to immunity did not bar his ex-wife's claim under the Matrimonial and Family Proceedings Act 1984 because he was “permanently resident” in the United Kingdom.

Dr Juffali was appointed by St Lucia as its principal permanent representative to the International Maritime Organisation, based in London. Under the terms of the Headquarters Agreement between the UK and the IMO, principal permanent representatives are entitled to the privileges and immunities of a head of mission under the Vienna Convention on Diplomatic Relations. Where, however, the representative is a national of the UK or permanently resident here, the immunity applies only while exercising official functions.

At first instance, Mr Justice Hayden held that – even where a diplomat’s appointment was certified by the FCO under the provisions of s. 8 of the International Organisations Act 1968 – it was necessary to apply a functional test to the question whether a diplomat was “en poste”. The court had to consider whether as a matter of fact he had begun, and continued, to exercise diplomatic functions. On the facts, he found that Dr Juffali had not exercised any diplomatic functions and that his appointment was an "artificial construct” designed to defeat the jurisdiction of the court. He found that Dr Juffali was also permanently resident in the UK.

On the immunity issue, the Court of Appeal (Lord Dyson MR, King and Hamblen LJJ) accepted Dr Juffali’s submission that there was no support in the international instruments, or the case law, for the judge’s functional approach to the question whether an individual was entitled in principle to enjoy immunity. The FCO certificate was conclusive of the facts stated in it and no further facts were required to establish the entitlement. The immunity did not breach Article 6 ECHR, because it was either required by international law or was “reasonable and falls within currently accepted international standards”.

On the permanent residence issue, the Court of Appeal applied the test set out in the FCO’s 1969 circular and held that Hayden J had been entitled to conclude on the facts that Dr Juffali was permanently resident in the United kingdom, despite his cosmopolitan lifestyle.  

The judgment appears here.